Opinion
1 CA-SA 11-0187
08-23-2011
NOEL OMAR RIOS, Petitioner, v. THE HONORABLE PAUL MCMURDIE, Judge of the SUPERIOR COURT OF THE STATE OF ARIZONA, in and for the County of MARICOPA, Respondent Judge, THE STATE OF ARIZONA, ex rel. THOMAS HORNE, the Arizona Attorney General, Real Party in Interest.
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24Maricopa County
Superior Court
No. CR2005-014552-001 DT
DECISION ORDER
The court, Presiding Judge Maurice Portley, and Judges Margaret H. Downie and Michael J. Brown participating, has considered the petition for special action. For the following reasons, we accept jurisdiction and deny relief.
FACTS AND PROCEDURAL BACKGROUND
A jury convicted Petitioner of second degree murder, aggravated assault and discharge of a firearm at a structure in July 2006. His conviction was reversed and the matter remanded for a new trial because the trial court had not properly instructed the jury that the State, pursuant to recent amendments to Arizona Revised Statutes section 13-205, had to disprove any justification defense beyond a reasonable doubt. See State v. Rios, 225 Ariz. 292, 237 P.3d 1052 (App. 2010).
After the mandate issued on March 14, 2011, Petitioner, through counsel, secured the grand jury transcripts on April 12, 2011, and returned them the following day. Petitioner requested an extension of time to file a motion challenging the original grand jury proceedings on May 18, 2011. The motion was denied on June 28, 2011, but Petitioner was given a thirty-day stay to file his petition.
JURISDICTION
Special action jurisdiction is discretionary. Ariz. R.P. Spec. Act. 1(a). We will, however, accept jurisdiction when there is no plain, speedy and adequate remedy by way of appeal. See Phx. Newspapers, Inc. v. Ellis, 215 Ariz. 268, 270, ¶ 9, 159 P.3d 578, 580 (App. 2007). Here, because the issue of whether Respondent erred by denying the motion for an extension of time to challenge the grand jury proceedings cannot be reviewed on appeal, special action jurisdiction is appropriate. See generally, State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995).
DISCUSSION
Arizona Rule of Criminal Procedure 12.9(b) provides that a motion to remand the matter to the grand jury has to be filed not "later than 25 days" after the certified transcript has been filed or the arraignment, whichever is later.Petitioner challenges the trial court's ruling that denied his request for more time to challenge the grand jury proceedings. We review the ruling for an abuse of discretion, Maretick v. Jarrett, 204 Ariz. 194, 195, ¶ 1, 62 P.3d 120, 121 (2003), but review any question of law de novo. See State v. Merolle, 227 Ariz. 51, _, ¶ 7, n.1, 251 P.3d 430, 431 (App. 2011).
Time is calculated pursuant to Ariz. R. Crim. P. 1.3.
In Maule v. Superior Court, we stated that a motion to extend the time to challenge grand jury proceedings must be filed within the twenty-five day time constraint imposed by Rule 12.9(b). 142 Ariz. 512, 515, 690 P.2d 813, 816 (App. 1984). In fact, in Merolle, after citing State v. Smith, 123 Ariz. 243, 248, 599 P.2d 199, 204 (1979) and State v. Lamb, 142 Ariz. 463, 468, 690 P.2d 764, 769 (1984), we held that a defendant who fails to timely file a motion to remand waives his right to file a late motion and the trial court cannot act on its own motion. Merolle, 227 Ariz. at _, ¶¶ 10, 15, 251 P.3d at 432-33. As a result, Arizona law clearly provides that a motion for remand or a motion for extension of time to file a motion for remand must be filed within twenty-five days as required by Rule 12.9(b).
To the extent that Korzep v. Superior Court, 172 Ariz. 534, 838 P.2d 1295 (App. 1991), allows a defendant whose case has been remanded for a new trial to ask the trial court to remand the case to a grand jury, Petitioner had twenty-five days to file a motion to remand or a motion to seek an extension of time to file a motion to remand. Because the grand jury transcripts had been filed years earlier and Petitioner was not going to be arraigned, he had to file either motion within twenty-five days of either: (a) the day after the mandate was issued, March 14, 2011; or (b) the day after the Petitioner returned the grand jury transcripts on April 13, 2011. Consequently, we examine whether Petitioner timely filed his motion for extension.
Petitioner filed his motion for extension of time to file a motion to remand on May 18, 2011. The motion was not filed within twenty-five days after the day the mandate was issued. Nor was it filed within twenty-five days after Petitioner returned the grand jury transcripts on April 13th. Moreover, the trial court did not find that Petitioner was excused from filing the motion for extension within twenty-five days after the grand jury transcripts were returned. Because the motion for extension was not timely filed under either twenty-five day window, the trial court correctly denied the motion on June 28, 2011.
CONCLUSION
For the foregoing reasons, we accept jurisdiction but deny relief. The stay previously granted by this court on July 29, 2011, is lifted.
MAURICE PORTLEY, Presiding Judge